guide to rule of law country analysis: the rule of law strategic

GUIDE TO RULE OF LAW COUNTRY ANALYSIS: THE RULE OF LAW STRATEGIC FRAMEWORK

A GUIDE FOR USAID DEMOCRACY AND GOVERNANCE OFFICERS

Updated January 2010 This publication was produced by the United States Agency for International Development. It was prepared by the Office of Democracy and Governance, Rule of Law Division.

This publication was produced by USAIDs Office of Democracy and Governance, Rule of Law Division, and published in August 2008. In this updated addition, DPK Consulting, a division of ARD, Inc. revised the document to include several case studies after field testing the Rule of Law Strategic Framework. USAID Task Order Number: DFD-I-05-04-00173

GUIDE TO RULE OF LAW COUNTRY ANALYSIS: THE RULE OF LAW STRATEGIC FRAMEWORK

A GUIDE FOR USAID DEMOCRACY AND GOVERNANCE OFFICERS

Updated January 2010

PREFACE

This document offers accumulated wisdom to USAID democracy and governance (DG) officers and other USAID staff who are developing strategies to address weak or inadequate justice systems. It provides a conceptual framework for analyzing challenges to the rule of law, as well as guidelines for conducting a justice sector assessment and for designing and prioritizing program interventions. USAIDs Democracy and Governance Office (DCHA/DG) recommends that an assessment be carried out by any mission contemplating initiating or expanding a rule of law program. DCHA/DG can provide assistance in structuring a scope of work and carrying out the assessment. A justice sector assessment would deepen the analysis contained in an overall DG assessment and provide the basis for integrating rule of law programming into a missions portfolio.

This guide is focused on promoting rule of law as a basis for democratic governance. It complements Conducting a Democracy and Governance Assessment: A Framework for Strategy Development (November 2000) by providing further elaboration on rule of law. It builds on an earlier USAID piece on rule of law, Weighing in on the Scales of Justice (February 1994), while focusing more closely on the links between the rule of law and democracy. Relevant background documents can be found on the USAID website at http://www.usaid.gov and the USAID development experience clearinghouse at http://dec.usaid.gov/.

Donor approaches to justice sector development have pursued a wide variety of goals. Rule of law can be a critical element of programming across all sectors of USAID programming. By focusing on it, USAID missions can ensure that legal frameworks are adequate and relevant laws and policies are implemented. A focus on rule of law also ensures that the justice system appropriately resolves disputes, protects citizens rights and ensures access to government services. This guide recognizes the importance of promoting the rule of law to achieve a variety of development goals. More importantly, it is focused on how USAID rule of law programs can contribute to the broader goals of democratic and economic development, with particular attention to empowerment of the poor and vulnerable groups. We are confident that it will assist in developing clear objectives and measuring results, within the context of democracy and governance strategies. This Guide is further intended to encourage DG Officers to develop holistic approaches to promoting the rule of law. Focused, strategic and holistic rule of law programming will contribute to effective and accountable democratic governance.

ACKNOWLEDGMENTS

This Guide reflects the combined efforts of a number of individuals within USAID over several years. Gail Lecce, Michael Miklaucic, Thomas Geiger, Jose Garzon, Gerald Hyman, Cathy Niarchos, Patricia Alexander and Jenny Murphy, all of whom served in USAIDs Office of Democracy and Governance, are particularly recognized for developing and refining the concepts, ideas and examples in this document. Other members of the Office of Democracy and Governances Rule of Law Division, including Paul Scott, Kate Somvongsiri, Keith Crawford, Achieng Akumu, Angana Shah, Louis-Alexandre Berg and Richard Gold have contributed to this document. David Mednicoff and Rick Messick provided additional insight and comments, and Eve Epstein and Susan Pologruto edited the document published in August 2008. We sincerely appreciate DPK Consulting, a division of ARD, Inc. for revising the document to include the case studies after field testing the Guide.

Further comments and input from the reader are welcome to help refine this framework.

http:http://dec.usaid.govhttp:http://www.usaid.gov

CONTENTS EXECUTIVE SUMMARY..............................................................................................................................1 INTRODUCTION .......................................................................................................................................... ..4

PART I. CONCEPTUAL FRAMEWORK FOR THE RULE OF LAW...................................5

A. Definition of the Rule of Law ..................................................................................................... ..6

B. Why the Rule of Law is Essential for Democracy .....................................................................7

C. The Essential Elements of the Rule of Law .................................................................................8

D. The Justice Sector........................................................................................................................... ..15

PART II. CONDUCTING A RULE OF LAW ASSESSMENT ...................................................21

Step 1. Take into Account the Political and Historical Context................. ................................21

Step 2. Understand the Roles of Major Players and Political Will .................... ..........................22

Step 3. Examine Program Options Beyond the Justice Sector .......................... ..........................23

Step 4. Assess the Justice Sector .............................................................................. ......................... .25

PART III. DEVELOPING A STRATEGY FOR THE JUSTICE SECTOR .............................27

A. Priorities for Justice Sector Programming.............................. .....................................................28

B. Program Approaches .................................................................... ....................................................29

TABLE 1: ILLUSTRATIVE PROGRAM SUPPORT OPTIONS..................................................41

APPENDIX A: ASSESSMENT QUESTIONS .... ............................................................................. ....42

APPENDIX B: SAMPLE ASSESSMENT SCOPE OF WORK...... ........................................... ....53

REFERENCES.....................................................................................................................................................58

EXECUTIVE SUMMARY

The purpose of the Guide to Rule of Law Country Analysis is to assist USAID Democracy and Governance (DG) officers in conducting a rule of law assessment and designing rule of law programs that have a direct impact on democratic development. There is a special focus on empowering poor and vulnerable groups and promoting economic development and security. Within USAIDs DG assessment framework,1 five elements comprise democracy: rule of law; consensus; competition; inclusion; and good governance. This Guide presents a strategic framework for conceptualizing the rule of law, analyzing a countrys strengths and weaknesses with regard to rule of law, and designing strategic programs to address rule of law challenges. It will help DG officers maximize the impact of rule of law programs on democracy and governance strategic objectives.

The Guide reflects the understanding that the justice sector is part of the larger political context. Effective rule of law programming may need to look beyond traditional approaches that focus on operations of the courts and other components of the justice system. When the goal is democratic governance, the analysis that informs rule of law program decisions must be broad and comprehensive, and programming must reflect a holistic appreciation of country dynamics.

This Guide is organized into three parts:

Part I provides a conceptual framework for analyzing the rule of law, by defining the rule of law and highlighting the links between rule of law and democracy. The conceptual framework focuses on five essential elements of the rule of law and the legal framework, institutions and actors that make up the justice system.

Part II outlines a four-step process for conducting a rule of law assessment. This process enables DG officers to determine whether rule of law programs should take place outside as well as within justice sector institutions, depending on country conditions. By analyzing the sector with respect to the five essential elements, it helps to focus attention on the key rule of law challenges as a basis for designing strategic programs. The assessment process should be participatory with key stakeholders, so as to obtain buy-in from the beginning of the process and benefit from their knowledge of local conditions and problems facing the justice system. This will also help develop the political will for justice reform. Appendix A presents illustrative questions to guide the assessment process.

Part III provides guidance for prioritizing among the five essential rule of law elements and suggests programming options to address weaknesses in each element.

Essential Elements of the Rule of Law

Five elements comprise the rule of law.2 Each must be present for rule of law to prevail. The elements are:

Order and securityRule of law cannot flourish in crime-ridden environments or where public order breaks down and citizens fear for their safety. The executive branch has immediate responsibility for order and security, but the judiciary has an important role as well in protecting rights and providing for the peaceful resolution of disputes. In addition, informal methods of

1 USAID, Conducting a DG Assessment: A Framework for Strategy Development, November 2000. 2 There is no single definition of the rule of law. However, this definition which has been adopted by USAID is consistent with internationally accepted principles.

Guide to Rule of Law Country Analysis: The Rule of Law Strategic Framework 1

resolving disputes, such as mediation or truth and reconciliation commissions, can promote order and security.

LegitimacyLaws are legitimate when they represent societal consensus. Legitimacy addresses both the substance of the law and the process by which it is developed. This process must be open and democratic. In some societies, legitimacy can be derived through religion, traditions, customs, or other means. Laws do not need to written in order to be legitimate, since traditional/customary laws are often passed on through oral traditions.

Checks and balancesThe rule of law depends on a separation of governmental powers among both branches and levels of government. An independent judiciary is seen as an important check. At the same time, checks and balances make the judiciary accountable to other branches of government. Like all branches, the judiciary is also accountable to the public. An independent and strong bar association can also help support the judiciary and serve as a check against judicial power.

FairnessFairness consists of four sub-elements: (1) equal application of the law, (2) procedural fairness, (3) protection of human rights and civil liberties, and (4) access to justice. These sub-elements are key to empowering the poor and disadvantaged, including women. The justice sector bears primary responsibility for ensuring that these sub-elements are in place and implemented.

Effective applicationThis element pertains to enforcing and applying laws. Without consistent enforcement and application for all citizens and other inhabitants, there can be no rule of law. The judiciary is an important element of the enforcement process.

The essential elements of the rule of law and the justice sector are mutually reinforcing in consolidating democracy. In practice, some elements of the rule of law are always present, but in some societies the essential elements listed below are relatively stronger than in others.


Order and Security

Legitimacy

Checks and Balances

Fairness Equal application of the law Procedural fairness Protection of basic human rights

and civil liberties Access to justice

Effective Application

The Justice Sector

Framework of Laws Justice Sector Institutions

Constitution Judiciary Ministry of justice

Organic Laws Legislature Prosecutors office

Laws Public defenders Ombudsmans office

Rules Law enforcement agencies Prisons

Regulations Regulatory bodies Law schools and bar associations Human rights organizations Public interest law groups Legal assistance NGOs Legal advocacy organizations Alternative dispute resolution NGOs Media Associations Non state justice institutions


Conducting a Rule of Law Assessment

The objective of this assessment process is to focus first on identifying the key problems that undermine the rule of law and only then on the programming solutions, rather than using potential programming solutions as the starting point for program design. The four steps are:

Step 1. Take into account the political and historical context.This step helps identify events that shape the environment, such as a recent conflict or the creation of a new state. It also develops information on the countrys legal traditions and the origins of its current laws, both statutory and traditional/customary.

Step 2. Understand the roles of major players and political will.This step helps identify the roles, resources, and interests of those who might potentially support reform as well as those who stand to benefit from retaining the status quo. It also guides an assessment of the strength of political will for reform and options for capitalizing on it, strengthening it, or working around its absence (or opposition). It is also important to consult with local implementing partners and other donors to understand the types of justice sector programs currently being funded or planned.

Step 3. Examine program options beyond the justice sector.This step broadens the assessment beyond justice sector institutions to the overall polity. It helps determine the extent to which the effectiveness of rule of law programming might increase by supporting other initiatives, such as political party development or legislative strengthening, or educational, job, and health programs that are part of a larger crime prevention strategy.

Step 4. Assess the justice sector.This step provides for a structured assessment of each essential element in terms of the two components of the justice sector, the legal framework and the justice institutions.

Developing a Strategy for Justice Sector programming

The assessment should identify the key challenges to be addressed through justice sector programming. Once the priority elements have been identified, programs should be targeted toward all of the appropriate laws, institutions, and actors that can contribute to addressing the weaknesses in that element.

Although country circumstances will vary, in considering the rule of law overall and its relationship to democracy, there may be priorities among the five essential elements. Two elements, order and security and legitimacy, often comprise the highest priority because they establish democratic legal authority. Two elements, checks and balances and fairness, may comprise the second highest priority because they guarantee rights and the democratic process. A third priority, effective application, improves the provision of justice services.

However, this priority sequencing does not apply in every context. For example, in sub-Saharan African countries, legitimacy may have limited importance because in areas outside of major cities, citizens, and sometimes police, do not have access to statutory legal codes. Arguably, law may not be legitimate if people cannot read or do not have access to legal codes, or police cannot travel to crime scenes for days or weeks after crimes are committed. Here, access may be just as important to legitimacy as it is to fairness.


These priorities should not be confused with mandatory sequencing. Other elements may deserve priority attention for a particular country, based on the specific rule of law challenges in that country, as determined through the assessment. Country conditions and funding limitations may not permit addressing the highest priorities first. When addressing a lower priority first, however, programming should set the stage for improvements in higher priority elements.


INTRODUCTION

There is growing recognition among donors that promoting democratic governance rooted in the rule of law contributes to long-term, sustainable economic and social development. Although the importance of the rule of law is highlighted throughout development literature, the objectives of various donors in supporting legal and justice sector programs vary a great deal. While recognizing the value of promoting the rule of law to achieve a variety of development goals, this Guide focuses specifically on the link between the rule of law and democratic governance, with particular atte ntion to the empowerment of the poor. In doing so, it facilitates the design of rule of law strategies that contribute to democratic governance. Improving the rule of law can also have positive contributions in other areas such as security and economic development.

USAIDs Conducting a DG Assessment: A Framework for Strategy Development (November 2000) identifies the rule of law as one of the five key elements of democracy. This Guide builds on that framework by providing a more specific conceptual framework for analyzing the rule of law, conducting a rule of law assessment and designing rule of

Elements of Democratic Governance

Rule of law Competition Consensus Inclusion Good governance

law strategies. A revised version of USAIDs Conducting a DG Assessment is currently under review and will be available in winter 2010.

It also broadens analysis around rule of law programming. As the DG Assessment Framework points out, the reasons a country may have deficiencies in its rule of law are complex. In fact, problems that show up in the legal and judicial systems rarely start there. The justice sector reflects underlying power structures that affect broader governance dynamics. It also reflects the problems with consensus, competition, and inclusion that affect other aspects of democratic governance. Achieving the rule of law involves every branch of government at every level, business entities, political parties, civil society, and individual citizens.

This Guide looks at the full range of options for addressing rule of law problems and treats the justice system as part of the larger political scheme. Addressing deficiencies in the courts, laws, and formal justice sector institutions may be critical to promoting the rule of law. However, other complex problems, such as poverty, social exclusion, and government weakness, may fundamentally impinge on the rule of law. The framework reflected in this Guide encourages looking outside the justice sector to consider how programming in other sectors or areas of democracy and governance might support rule of law objectives. It also recommends involving actors across government and throughout society in efforts to improve the legal framework and justice sector institutions.

Finally, the Guide does not make any recommendations about how to sequence different programs, since country circumstances are too variable to make general prescriptions. However, it does suggest an approach to prioritizing rule of law programming, depending on the country context. It further suggests a range of potential programmatic approaches to address specific types of problems in the rule of law.


PART I. CONCEPTUAL FRAMEWORK FOR THE RULE OF LAW

A. Definition of the Rule of Law The term rule of law is used frequently in reference UN Definition of Rule of Law

The rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

to a wide variety of desired end states. Neither scholars nor practitioners have settled upon an accepted definition. However, the term usually refers to a state in which citizens, corporations, and the state itself obey the law, and the laws are derived from a democratic consensus. This is captured in a definition proposed by the United Nations.3 The report containing this definition then suggests certain characteristics of the rule of law, including adherence to the principles of supremacy of law, equality before the law, fairness in application, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency. The U.S. State Departments website similarly describes rule of law as protecting fundamental political, social, and economic rights and distinguishes between rule of law versus rule by law in more authoritarian societies.4

Both descriptions of the rule of law point to a universality of the principle. The rule of law is not Western, European or American. It is available to all societies. States differ in terms of laws and the treaties they have signed with respect to human rights. Legal cultures differ depending upon history, with many countries basing their legal system on the civil law tradition and others (including the U.S.) on the common law tradition, while many countries include elements of both traditions and may incorporate significant traditional, religious, or customary components. In many countries, religious law provides the foundation for family and other laws. Societies differ in terms of the values they ascribe to law versus other means of social organization, such as personal or family loyalty. Respect for specific laws and other norms varies depending upon cultures and circumstances. The principle of rule of law, however, transcends all these differences.

This has important implications for practitioners. If the rule of law is a universal principle, then supporting the rule of law is not necessarily imposing foreign ideas on a society. The challenge is to find ways in which a society may govern itself under the rule of law, using an approach that reflects the values and norms of that society. Indeed, countries which have successfully reformed their legal systems have owned their reforms by consciously borrowing from existing models, while introducing innovations where necessary.

3 United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies: Report

of the Secretary General, August 23, 2004, pg. 4, para 6. 4 U.S. Department of State [http://usinfo.state.gov/products/pubs/principles/law.htm]


http://usinfo.state.gov/products/pubs/principles/law.htm

B. The Rule of Law and Democracy

Unlike authoritarian states, which may be governed either by law or by personal power or loyalty, democracies require the rule of law. The rule of law is important to democracy because it establishes the foundation for certain conditions on which democracy depends.

Rule of Law

Conditions on Which Democracy Depends

Expression of the collective will Monopoly on force Equal Rights Social order

Democracy

Expression of the collective willOne characteristic of democracies is that law is a means by which the collective will of the people is expressed. An end result of the political process is laws that determine the allocation of public resources, empower public officials to act on behalf of society, and set norms of acceptable and prohibited behavior. If laws are ultimately meaningless due to inadequate adjudication, enforcement, or compliance, then the purpose of holding elections and forming representative bodies to enact those laws fails to be achieved. A legal framework rooted in the collective provides the essential foundation for these laws to be implemented and enforced. In many countries, the constitution is the highest level expression of this process. The constitution reflects the collective will of the people with respect to the organization and powers of their government and enshrines the basic human and civil rights that the people want protected.

Monopoly on the legitimate use of forceDemocracy depends on an effective state with a monopoly on the legitimate use of force. The constitution and statutes, including criminal laws, give the state the authority for a monopoly on the use of force, define when force is permissible, and restrict the use of force by citizens to limited circumstances. Without such restrictions, force and violence rather than consensus and competition may determine who holds political power, and those who pursue legitimate political activities may face intimidation or worse. Where journalists, politicians, and ordinary citizens fear to participate fully in the political dialogue, competition is limited and democracy is undermined.

Equal RightsAdherence to the rule of law levels the playing field in the political arena. Every citizen, regardless of his or her sex, race, class, or other characteristics, shares political rights and responsibilities that are recognized and protected equally under the law. Most constitutions ordain equality among citizens. Where the rule of law exists, all other considerations, such as class, gender, or ethnicity, are secondary. Where rule of law does not exist, other considerations may prevail, leading to a society with second-class citizens whose rights are not respected despite the formal norm of equality.

Social orderThe rule of law provides a stable basis for democracy to develop. It ensures the protection of those rights critical to maintaining an orderly and productive society, creating the conditions that enable a democratic society to develop and thrive. These rights are essential to maintaining basic social order and discouraging the resort to vigilantism, criminality, and violence. They include effective protection of fundamental property and contractual rights, guarantees of freedom of association and civil liberties, ensuring compensation for wrongs, enforcement and regulation of social responsibilities and obligations, protection of individuals against predatory business practices, protection from economic and social discrimination, and peaceful resolution of disputes. Such rights are also essential to ensuring economic development and addressing poverty.


C. The Essential Elements of the Rule of Law

Five elements comprise the rule of law. Each must be present for the rule of law to prevail.

(1) Order and Security

As the DG Assessment Framework points out, personal security is paramount to most people. In countries where public order


Order and security Legitimacy Checks and balances Fairness Effective application

breaks down or crime becomes epidemic, citizens may lose faith in their government. In the worst cases, they begin to take the law into their own hands. For example, lax law enforcement in urban slums and isolated rural areas has led to high rates of vigilantism in some Latin American countries. Similarly, climates of fear and frustration with high levels of crime can lead to calls for draconian measures, like the suspension of human rights, and to support for authoritarian leaders who can restore order. Failure of the courts to protect property rights adequately and consistently, to facilitate the conduct of essential economic activity, or to resolve disputes in a fair and timely manner can also lead to social unrest and black or gray market activity. It can also result in potentially violent self-help conduct, seriously undermining public order, safety, and security. While the judiciary and legislature have important roles in preserving order and security, the executive branch has the immediate responsibility in this area. An important and growing area for resolving disputes involve informal methods, such as mediation or arbitration, and other forums to provide closure after conflicts, such as truth and reconciliation committees.

Case Study: Lack of Basic Order and Security in Nepal

The Nepal rule of law assessment concluded that the foremost challenge to the rule of law in Nepal, and therefore a priority area for USAID programming, is the widespread impunity that is impeding law enforcement, fueling a breakdown in law and order, and enabling crime and violence to proliferate. The assessment team found politics has been criminalized; crimes both small and large are regularly ignored; long-simmering disputes boil over into violence and retribution; and citizens regularly take the law into their own hands. Chaotic national politics have fed a climate of uncertainty as people wonder who is and will remain in charge. Successive governments exercise tight control of the police and government officials suspected of crimes put pressure on police and prosecutors. According to the National Human Rights Commission, not a single human rights abuse has been prosecuted in Nepal. Where law enforcement authorities have the space to act, they suffer from limitations in capacity. Their numbers are insufficient, they are poorly equipped, and many officers lack basic skills. Low salaries, as low as $100 a month, create incentives for political pressure, corruption, and even involvement in organized crime. Investigative skills are limited and there are few specialized investigators. Prosecutors, who also suffer from insufficient personnel, limited training, and constantly changing leadership, rarely take an active role in directing investigations, resulting in relatively few criminal cases initiated in court. The inability of the government to enforce, and refusal to respect, the law has fueled a growing lack of trust in the government and the legitimatization of violence as an accepted way to achieve political, economic, and social goals. Given the lack of basic order and security, the assessment recommendations logically focused on interventions to reduce political pressure on law and security institutions and increase their resources and training. These measures would be an initial step to support law enforcement authorities to replace fear with the public trust and confidence that are critical for democratic, public-service oriented law enforcement.


Case Study: Legitimacy of the Source of Law in Zambia and

Morocco

The African nations of Zambia and Morocco both have colonial legacies yet diverge with respect to the perceived legitimacy of their legal frameworks.

The assessment team in Zambia found that the normative framework of governance in Zambia enjoys broad respect. The received law, based on English common law, and the customary law, based on pre-colonial traditions, are both seen as legitimate. The sentiment most often expressed in interviews was that the basic legal structure is generally adequate. The problems are seen in the refinement and implementation of the law.

In Morocco on the other hand, legitimacy of the legal framework suffers due to the legislative process and the source of the law. Most laws are drafted by executive branch ministries and then forwarded to the legislative branch and laws tend to be amended or enacted with little to no consultation from the public. Laws are published in a subscription based Official Gazette that is not widely available. Another problematic aspect of the law-making process results from the legacy of the colonial body of laws that were inherited, together with the continuing practice of adopting foreign laws, sometimes with few modifications. This is particularly true with the commercial codes, where frequently the text of French laws is simply transferred into the Moroccan system a practice that has caused difficulty, notably with respect to the law on bankruptcy.

(2) Legitimacy

The perception of law as legitimate and worthy of adherence underpins the rule of law. The rule of law as a basis for democratic governance includes not only the supremacy of the law, but a democratic basis for law that makes the law legitimate. That basis is that laws represent the collective will. In societies where the rule of law is observed, virtually all citizens obey laws, even when doing so contravenes their personal interests. This willingness is not based solely on the threat of sanctions; it also arises from the citizens recognition that laws are arrived at in a manner set out in a constitutional order and subject to social input. Therefore, the laws represent the collective will. In that sense, they are fair and approximate the common good. Hence citizens generally respect the authority of law. Legitimacy can be achieved through other means; for example, in theocratic or customary societies legitimacy can come from religions or traditional practices.

Lack of legitimacy can occur for a variety of reasons. At the most fundamental level, when people have not reached a consensus on the basic boundaries or structure of the state, there is no legitimate constitutional order and the resulting laws have no legitimacy. Lack of legitimacy may also result when the process of proposing, reviewing, and enacting laws is deeply flawed. A legislature may be controlled by an elite faction, or its members may be so patently corrupt that there is no effective social input, and laws serve the interests of only a few rather than expressing the collective will. In addition, in emerging democracies, there are often questions about the legitimacy of laws imposed by colonial or foreign powers or inherited from non-democratic regimes.


Sub-elements of Fairness

Equal application of the law Procedural fairness Protection of basic human rights and

civil liberties Access to justice

(3) Checks and Balances Checks and Balances Case Study:

Strengthening Judicial Governance in Russia

The Russia rule of law assessment found that one of the principal challenges to democracy and the rule of law in Russia is safeguarding judicial independence in the face of growing executive power. To this end, the assessment team recommended USAID focus programming on strengthening judicial self-governance as a check on the executive branch. Factors supporting this recommendation included: the strong link between effective judicial governance and judicial independence; the government had declared a policy to promote judicial independence; the demonstrated interest of Russian judicial leaders in U.S. judicial governance models and the role that ongoing U.S.-Russian international judicial exchanges could play; and the benefit of improved judicial governance on sustainability of USAID assistance.

Countries in which the rule of law exists have a separation or diversity of governmental powers. Excessive concentration in any one branch, institution or level of government often leads to the arbitrary and abusive exercise of power. Separation (or at least independent decision-making, if not complete autonomy) provides the checks and balances needed to keep government contained. Checks and balances occur vertically among the different levels of government as well as horizontally. When functioning appropriately, regional and local governments can provide a balance to central government authorities. Through monitoring and oversight, civil society also acts as a critical check on government at all levels. Checks and balances depend on all branches of

government functioning appropriately. In many countries in which USAID works, however, it is the legislature and/or judiciary that needs support in order to curb the excessive power of the executive.

Checks and balances include the ability of the public to understand the proper functions of the different justice sector actors, and to hold them accountable. This requires effective civic education initiatives and a degree of transparency in both the decision-making and administration of public resources managed by the justice sector. Judicial branch accountability also runs vertically, with higher levels of authority holding subordinate levels accountable through the appeals and disciplinary processes. Independence and autonomy of the judicial branch demand self-discipline to curb abuses and minimize the need for external checks. An independent and strong bar association can serve as a check on excessive judicial power. In emerging democracies, the judiciary often needs support in achieving self-discipline along with the capacity for self-governance. Further discussion of judicial independence as a component of justice sector reform can be found in USAIDs Guidance for Promoting Judicial Independence and Impartiality (2002).

(4) Fairness

Fairness consists of four sub-elements.

Equal application of the lawDemocratic legitimacy derives from a consensus among citizens that laws, as administered, represent the collective will. That consensus fades unless laws are applied equally to all persons, regardless of their class, sex, ethnicity, or other characteristics. The most common failing in the criminal area is the impunity of well-connected individuals. The privileged may include politicians, elected officials, high ranking military personnel, members of the dominant social class, and wealthy elites. Unequal application may also occur when the poor and the disadvantaged, including women, are victims or the accused. The legal system often does not give such cases the same attention as those cases in which elites are the victims or the accused. In addition, unequal treatment can occur in civil matters, such as land titling, debt collection, taxation, landlord-tenant disputes, mortgage foreclosures, and enforcement of liens


and security interests. The poor and disadvantaged often have scant possibility of winning civil cases against the well-connected. In many societies, women are particularly vulnerable to unequal application of the law.

The reasons that laws are applied unequally are complex. Obvious flaws in the legal system (such as lack of judicial independence, severe administrative failings, or corruption) are only symptoms. The underlying malady is the power of entrenched political and economic elites who benefit from a compliant legal system or ethnic or regional domination. USAIDs Legal Empowerment of the Poor: From Concepts to Assessment provides further guidance on empowering the poor through the legal system by enhancing their rights and enabling equal application.

Procedural fairnessAt its core, procedural fairness means that the government has established rules for legal proceedings, that those rules are fair, and that the government follows the rules in enforcing laws, thus impeding arbitrary action by the government. In the U.S., procedural fairness in legal proceedings is captured under the concept due process. The Fifth Amendment to the U.S. Constitution provides that no person shall be deprived of life, liberty or property without due process of law. The framers of the Constitution took this concept from the Magna Carta, which contained a similar guarantee. Although the term due process is a concept of the common law system, all legal regimes apply some version of procedural fairness. The procedures to be followed in both criminal and civil cases are set forth in criminal and civil procedure codes, which should conform to international standards for procedural fairness.

In the criminal area, procedural fairness generally guarantees the right of those accused of crimes to know the charges against them in a language they understand, the right to obtain or be provided counsel, the right to present evidence in their defense, the opportunity to hear or review the prosecutions evidence, the opportunity to confront and cross examine witnesses (where oral proceedings exist), and the right to a speedy trial5, especially if incarcerated.

Procedural fairness in the trial of civil matters (such as land title, debt collection, breach of contract, and family law actions) ensures that all parties have a full and equal opportunity to be heard, to present evidence and arguments in support of their positions, to have notice of and an opportunity to respond to the case presented against them, and to receive adequate and timely notice of all court proceedings. Many countries have recognized a right to a trial within a reasonable time in civil matters.6

Procedural fairness is indispensable in controlling abuse by police and other law enforcement authorities. Where a justice system incorporates and effectively enforces adequate procedural protections, police do not easily or consistently violate citizen rights. The reverse is also true. For example, the failure of Haitian judges to enforce the constitutional requirement that an arrested person be brought before a judge within 48 hours to rule on the legality of the arrest results in the illegal detention of arrested persons by law enforcement authorities and violations of international human rights standards.

Protection of human rights and civil libertiesMinimum standards for the treatment of all people and the preservation of their human rights and civil liberties have gained international

5 See, e.g., Article 14 of the International Covenant on Civil and Political Rights.

6 See Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).


acceptance. These are defined in various UN conventions and declarations7 as well as in regional agreements.8 While equal application of the law ensures only that the laws, as enacted, are applied fairly, these standards apply to the substance of the laws themselves.

Some governments maintain that international human rights standards do not conform to the values of their citizens. They contend that their legislation and institutions must be based on alternative standards of human rights and civil liberties. Determining whether a country meets the minimum standards involves a review of both the countrys body of laws and the structure and performance of its legal institutions. The rule of law as defined above exists only if the national legal system both recognizes essential human rights and respects those rights in practice.

Access to justiceCitizens have access to justice when they have the ability to prevent the abuse of their rights and obtain remedies when such rights are abused. Access to justice allows citizens to enforce their rights against infringement by the state or powerful private interests. Although a variety of laws and institutions are designed to protect the rights of citizens, if these institutional mechanisms fail, citizens must also be able to bring direct action to limit executive power and hold the government accountable. In many cases, the rights being violated are the rights to economic and social resources, such as land, title, permits, and licenses. These infringements often affect the poor and vulnerable segments of society, including women, who have the least knowledge of and access to legal recourse. The cost of initiating legal access, through judicial filing or attorney fees, can also negatively affect access to justice. Access to justice further protects citizens, particularly the poor and disadvantaged, against the actions of powerful private interests that may bypass or penetrate the state.

For example, Nepal has a highly rural, broadly dispersed, and mainly poor population. Surveys have indicated that the majority of disputes that are adjudicated in Nepal are handled not by courts or government officials but by informal local actors such as village chiefs. Also, much remains to be done in Nepal to increase access to legal information such as statutes, government regulations, and the judgments and orders of courts. Very little of the body of Nepali public laws and regulations is published electronically and the Supreme Court has not yet initiated its planned Internet publication of its significant decisions. In Haiti, many citizens lack access to justice because they live in rural communities geographically distant from courts and other justice-related institutions.

Access to justice is essential for citizens to support democracy. When the state fails to protect and provide for all citizens, and segments of society lack the ability to obtain justice, there will be less support for democracy.

7 Relevant UN conventions and declarations include the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child; and the Convention Relating to the Status of Refugees. Additional UN statements of principles and guidelines include: the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Basic Principles for the Treatment of Prisoners; and the Body of Principles for the Protection of Persons under Any Form of Detention or Imprisonment. 8 Important multi-lateral regional requirements and standards include: the European Convention for Protection of Human Rights and Fundamental Freedoms; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the African [Banjul] Charter on Human and Peoples Rights; the American Declaration of the Rights and Duties of Man; the American Convention on Human Rights; the Inter-American Convention to Prevent and Punish Torture; and the Inter-American Convention on Forced Disappearance of Persons.


Increasing access to justice is not always about quantitymore court rooms, more staff, or more justice houses that must be sustained over time. It is also about qualitywell-prepared defense attorneys, changes in the legal framework to protect women, better information, a computer terminal at the courthouse entrance that allows litigants or family members to see what is happening to their case, a more diverse and client-oriented court staff, and more convenient hours of operation. In many cases, it may be more appropriate to promote circuit-riding models where prosecutors, judges, and defense counsel travel to remote areas rather than spending millions of dollars to construct courthouses that people cannot reach. In Haiti, USAID has funded a roving justice of the peace project whereby judges travel by motorcycle to rural communities to adjudicate disputes or perform civic legal education activities. In El Salvador, USAID has funded mobile mediation units.

Case Study: Fairness in Zambia

The Zambia rule of law assessment team found that fairness is a mixed picture in Zambia. On the one hand, there is broad respect for law and the courts command a higher degree of public confidence than most other public institutions. The consensus of objective observers seems to be that the countrys judges and lawyers generally strive to remain independent. On the other hand, weaknesses in the performance of the justice system, combined with the widespread poverty in Zambia and limited resources available for investment in improving access to justice, raise serious issues about the systems fairness.

The poor (the majority of the population) cannot afford lawyers or the time and expense of protracted litigation in the backlogged formal courts. Public defenders and pro bono lawyers are scarce. For those in rural areas, the magistrates courts are often located at great distances from where the parties live. The language of the formal courts is English and interpreters are not always available. Access to legal services from the government or from civil society groups is quite limited. All this means that for most people the only recourse is to the local courts. The local courts do an impressive job in dispensing justice rapidly and at low cost, applying customary law. Nevertheless, the well-to-do enjoy the luxury of a choice of law and a choice of forum formal courts applying written law with representation by counsel, or local courts applying customary law without legal representation. The poor do not have that choice as a practical matter.

Unfairness is also evident in the criminal justice system. The poor are often held in pretrial detention for months and even years, while those with the means or with ties to the community, such as family members willing to post bond, are set free on bail. Despite recent public attention to the importance of gender equality to economic and social progress and the need to respect womens rights as a fundamental tenet of a democratic society, historical gender-based discrimination persists in many

Access to justice need not overburden state resources, because it is a right held in reserve. Most citizensincluding those from countries with robust justice institutionsrarely step into a courtroom. Yet they enjoy access to justice in the same way as those with health insurance enjoy access to health care even if they never visit a hospital. If governance is sound and the rule of law is generally respected in society, then justice institutions can be used sparingly.

(5) Effective application. There cannot be the rule of law without application and enforcement of laws. Even if laws are legitimately derived and equally applied, equality under the law will not occur unless the laws are consistently enforced and applied. Also, procedural fairness will not be possible since, by definition, it is about applying established legal rules to the governments proceedings.


The judiciary is just one element of enforcement. The police are the first line for enforcement of criminal laws. Fair and capable prosecutors must also be able to prosecute cases following arrest, which requires good coordination between police and prosecutors.

Executive branch agencies often have the lead role in applying and enforcing laws, through their regulatory and administrative functions. These laws and associated procedures apply to such functions as granting government pensions and other benefits, issuing business licenses, and enforcing health, safety, and environmental regulations. However, even with administrative agency cases, when these laws are violated or disputes need to be resolved, the courts and law enforcement come into play. In civil matters involving disputes between citizens that result in judicial decisions, either the judicial or the executive branch is responsible for enforcing judgments, depending on the structure of the countrys legal system.

Compliance with laws rarely requires the judiciarys active involvement because relatively few cases

Case Study: Effectiveness of the Application of Laws in Zambia

The Zambia rule of law assessment team found that a primary rule of law shortcoming in Zambia is the ineffective application of laws. Some positive steps have been taken, including the creation of a commercial list, an expedited and simplified system in the High Court for rapid adjudication, which has considerably reduced the backlog and improved the clearance rate. However, delays in the legislative and judicial processes and also in the dissemination of new laws and judicial decisions cause uncertainty about what is the law. Legal representation of the poor and the disadvantaged is clearly inadequate to the need. Judges lack legal or management training and often operate without trained staff, suitable facilities, or even basic office supplies. Financial shortfalls also affect the police, public prosecutors, legal aid providers, and prison services. Most prosecutions rely on police prosecutors who are not lawyers. The capacity of the police to investigate crimes, collect and present evidence, and contribute to order and security in communities is limited and popular distrust of the police is widespread. Forensic laboratory facilities and trained laboratory staff are lacking.

Both civil suits and criminal prosecutions incur unreasonable delays, due to numerous factors. Reasons for delay include rigid and unduly complex procedures, lax case management practices that tolerate excessive adjournments and continuances, lack of automated management information systems to facilitate performance management, the absence of recording equipment to create court records (leaving magistrates to prepare the record with handwritten notes), and judicial vacancies or absences in the subordinate courts.

actually proceed to court. However, the judiciarys role is much larger than the small number of cases would indicate. The fact that the judiciary and the other components of the system stand ready and able to enforce the laws serves as a deterrent and may be enough to promote compliance in a state governed by the rule of law.

(6) Cross-Cutting Issues: Efficiency and Integrity. Efficiency and integrity are important issues that cut across all elements of the rule of law. Often uppermost in the minds of reformers, efficiency is a quality of institutional performance that can bolster performance in all elements. It is not a separate essential element but underpins all essential elements. Similarly, increasing integrity and overcoming corruption are extremely important to nearly all rule of law programs, but integrity is also a dimension of institutional performance, rather than a separate element. Efficiency and integrity may determine whether or not an essential element of the rule of law exists in a given country context.


In many USAID-assisted countries, such as in Haiti and Kosovo, the courts are severely backlogged. This affects access to justice and negatively affects the reasonableness of the length of the trial and the right to a speedy trial in criminal cases. The backlog of criminal cases may lead to a high percentage of detainees awaiting sentence and is often one of the most serious human rights problems. Backlogs of civil and commercial cases are also an impediment to economic trade, investment and growth and may undermine the legitimacy of the justice system as a whole. Typical responses to increase efficiency include introduction of plea bargaining, support to alternative dispute resolution, establishment of special commercial or criminal courts, automation, and improved court management.

While justice delayed is justice denied, standards of efficiency are highly subjective and can be difficult to define through an international standard.9 More important, inefficiency often masks more serious deficiencies in the five essential elements: lack of access to counsel, arcane procedures that create backlogs in one part of the system,10 discrimination, executive interference or deliberate withholding of resources, or lack of security. What is important is that a rule of law assessment and design consider efficiency within the entire framework of the rule of law and from the roots of the systemthe essential elementsrather than treating it as the core problem.

With respect to integrity, high degrees of corruption are symptomatic of inadequacies in the essential elements. These inadequacies account for much of the phenomenon of corruption. They include insufficient independence, accountability, and internal discipline (checks and balances); unequal application (fairness); or the presence of organized crime (order and security). Should rule of law programs target corruption? Absolutely. But an anti-corruption or integrity program should address the underlying problems that manifest themselves in corruption, such as bribery, lack of transparency, or lack of accountability.11 Problems of integrity in the judiciary are not fundamentally different from problems of integrity in other branches of government. Pressure from civil society or increased community participation can motivate institutions to address these issues.

D. The Justice Sector

The tangible, concrete universe for rule of law assessment and program design is the justice sector. While the rule of law depends heavily upon the performance of the executive and legislative branches of government and on many non-governmental actors, it is the justice sector that is largely responsible for making the rule of law operative in society. Some USAID rule of law programs work outside of the justice sector, particularly when the fundamental problems cannot be fixed by working directly with this sector. Examples include a lack of basic order and security and/or legitimacy. In Kosovo, following the conflict in 1999, there was no effective judiciary with whom to cooperate. Thus, initial rule of law assistance involved helping to draft laws, provide infrastructure assistance, hire judges, prosecutors, and support staff, and re-establish a functioning judiciary. Most initial focus also involved executive and legislative matters, to provide the framework for a functioning judiciary

Justice Sector Components

Framework of laws Justice sector

institutions and actors

and to establish order and security.

9 Linn Hammergren, Assessments, Monitoring, Evaluation and Research: Improving the Knowledge Base for Judicial Reform Programs, 2002. See also William C. Prilliman, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law, Praeger Publishers, 2000. 10 For example, anti-crime laws that augment the power of police by removing procedural protections can increase the backlog of detainees awaiting sentence. 11 See USAID Anti-Corruption Strategy, January 2005. See also Transparency International, Combating Corruption in Judicial Systems: Advocacy Toolkit, 2008.


http:accountability.11

The justice sector includes two interrelated components. The framework of laws is comprised of the laws and rules that govern public behavior, including the constitution, codes, laws, and regulations. Legal frameworks establish and empower justice sector institutions. They define institutional roles and regulate their behavior. Institutions and actors then give life to the law, which only exists on paper until institutions and actors put the law into practice.

(1) The Framework of Laws

The initial evidence of a commitment to the rule of law is the reflection of the five elements of rule of law in a countrys framework of laws. Legitimacy is reflected in the approach used to develop and add to the framework when this approach involves a consultative, participatory process. Since many countries inherit their framework of laws from a non-democratic past, legitimacy is often problematic.

A commitment to procedural fairness, access to justice, and checks and balances is most often incorporated in some manner in a constitution and then defined more specifically in subordinate legislation. This legislation contains provisions for implementing these guarantees. Examples include criminal and civil procedure codes as well as laws on the judiciary. Criminal codes establish the primary basis for the preservation of order and security. Laws establishing the authority for the judiciary, prosecutors office, and police forces lay the basis for the enforcement of criminal laws, whereas the laws setting forth the authorities for executive branch offices lay much of the basis for application of administrative laws.

Most of the legal systems in Europe are based on the civil or Roman law tradition, as are the legal systems of many developing countries in which USAID works. The common law system is used in the U.S. and England and in some other countries following the Anglo-American tradition. In civil law systems, the civil code itself is the foundation of the legal order. This is because, in theory, enacted law is the pre-eminent source of law. Secondary sources of law, such as court decisions, are not binding in subsequent cases, either on the courts that issue them or on the lower courts.12 In contrast, under the common law system, constitutions and laws are pre-eminent, but court decisions are also treated as important and binding sources of law. Over time, these two major legal systems are becoming more similar to each other by borrowing and combining elements and by adopting similar innovations. In addition, many systems include elements of both common and civil law. However, some important differences remain which can affect the successful transfer of practices from one system to the other. In addition, many legal systems incorporate elements of traditional, customary, or religious elements, either in parallel or as an integral component of the core legal system.

A good framework of laws will not ensure adequate rule of law in a country, but it does lay the groundwork. A statutory base that reflects consensus around the elements of the rule of law enables progress on all those elements. Additionally, in many cases, implementing regulations or rules are needed to define the specifics and mechanics for effective, practical implementation of the elements. In many developing countries, the absence of clear and complete rules and regulations is a very serious problem, often resulting in non-existent or poor implementation of the primary legislation.

Special Issues in Post-conflict Environments. Many post-conflict situations present unique issues with respect to the framework of laws. There may be lack of agreement about which framework applies. Also, the pre-existing framework may be incomplete or may not provide for fundamental rights. Post

12 Mary Ann Glendon et al., Comparative Legal Traditions, West Group, 1999, p. 125.


http:courts.12

Public Institutions

Judiciary Ministries of Justice

Legislatures (especially the judicial committee) Prosecutors offices

Public defenders Ombudsmans offices

Law enforcement agencies Prisons

Regulatory bodies Public law schools and bar associations

Non-State (customary or religious) institutions

Private Institutions

Human rights organizations Public interest law groups Legal assistance NGOs

Legal advocacy organizations Alternative dispute resolution

NGOs

Private law schools and bar

associations

Media associations

conflict interventions may include adopting previous codes or introducing internationally accepted codes as interim measures while longer-term reforms are developed.

The establishment of UN protectorates following the deployment of UN peacekeeping forces, as occurred in Kosovo and Timor-Leste, illustrates some of the challenges. The UN special representatives for these regions were officially responsible for adopting the laws that would apply to these territories. There are inevitable tensions in such an arrangement. For example, the UN Special Representative to Kosovo initially adopted the 1989 Federal Republic of Yugoslavia criminal procedure code as applicable law, a reasonable decision from the perspective of international law. However, that code had formed the basis for much of the discrimination against the Kosovars and was therefore repugnant to them. Consequently, the UN quickly undertook an effort to draft a new criminal procedure code and eventually enacted many new civil and criminal laws.

(2) Justice Sector Institutions and Actors

Justice sector institutions and actors, both public and private, governmental and non-governmental, make up the other component of the justice sector and the arena in which rule of law programs take place. Justice sector programs aim to reform and improve institutions. In some cases, this may involve strengthening institutions, while in others it may require moving in the opposite direction, to limit power. One example of the latter is limiting the power of the procuracy (institutions that combine police and prosecutor functions) in former Soviet countries by requiring warrants from a court for their actions.

The following describes considerations with respect to rule of law programming for key institutions and actors and also highlights special issues presented by post-conflict environments.

The Judiciary13If the judiciary is not operating effectively, it is highly unlikely that rule of law will prevail. The judiciary plays a key role in achieving all five essential elements of the rule of law. However, even if there are wholesale problems with the court system, it is highly unlikely that the judiciary is the only source of this dysfunction. Therefore, it is important not to program solely for the court system, isolated from other actors in the justice system. Capacity is

13 As used here, the term judiciary refers to the courts, including judges, court administrative staff (such as court administrators and court clerks), and any associated staff under the courts control (such as bailiffs and court guards). In some countries, prosecutors are included within the judiciary, and selection procedures for both judges and prosecutors are very similar. Civil law systems also use investigating judges, whose responsibility is to conduct pre-trial investigations of cases, while another judge actually conducts the trial. Investigating judges are typically part of the regular corps of judges, but are sometimes treated as a separate body. Courts coming from the civil law tradition may also include so-called lay judges or lay jurors. These are citizens without legal training who serve on trial panels with regular judges, and function somewhat like jurors in the Anglo-American system.


often a secondary issue to political will. For this reason, training judgesoften a favored first-line interventionis not the answer to all rule of law deficits.

ProsecutorsThroughout history, the role of the prosecutor has been very different in common law and civil law systems. The adversarial nature of the common law criminal system assigns a key role to the prosecutor. The burden is on the prosecutor to prove that the accused is guilty, and the prosecutor has much of the responsibility for moving a criminal case forward. In contrast, in the classic civil law inquisitorial system, the role of the prosecutor either does not exist or is an appendage of the judiciary. The judge is responsible for investigating the case, examining the evidence, and making the final decision.

Many civil law countries have moved to a more adversarial system in recent years. In those

countries, the prosecutor plays a role similar to that in the U.S. However, the legal systems of

countries still vary greatly. Strategic rule of law programming involving prosecutors requires an

understanding of these historical differences and trends.

DefendersDefenders, both public and private, play a critical role in ensuring application of the law, procedural fairness, and access to justice. Unfortunately for many citizens in countries where USAID works, legal defense is inaccessible because of either a lack of resources, a lack of a right to defense, or both. A critical issue with regard to defenders is the quality of their services and who oversees quality control in the defense bar. A strong and independent bar association can play an important role in supporting judicial independence and legal reforms, strengthening the quality of defenders, and providing a check on judicial power.

PolicePolice are an integral part of a system of the rule of law for the preservation of security and the enforcement of law. However, in many countries, police themselves have often threatened the rule of law by violating human rights, supporting non-democratic political structures, or engaging in corruption and illegal behavior. Donors are often reluctant to engage with the police, and historically police have received significantly less donor attention than the judiciary or prosecutors, with the exception of post-conflict situations.

The growing realization of the importance of security to the protection of democracy in steady states, together with the continued number of post-conflict interventions, is leading to increased attention to police reform by the U.S. government and other donors. Until recently, legislative restrictions have largely limited USAID from providing assistance to police. Community-based police assistance was authorized in FY 2002, and legislation in 2005 considerably expanded the scope of permissible police assistance services to enhance the effectiveness and accountability of civilian police authority through training and technical assistance in human rights, the rule of law, strategic planning, and through assistance to foster civilian police roles that support democratic governance14 Congress has renewed this authority in each subsequent Foreign Operations appropriations act. Assistance for Civilian Policing, USAID Policy Guidance (December 2005) provides policy guidelines and other information on police programming. USAID is developing technical guidance for engaging with the police to promote the rule of law.

PrisonsEffective and safe prisons are essential to promoting the rule of law. The escape or release of prisoners due to inadequate facilities undermines the effectiveness of the courts and police and erodes the legitimacy of justice institutions. At the same time, ineffective or outdated prison systems can lead to

14 Section 564(a) of the Foreign Operations, Export Financing, and Related Program Appropriations Act (FOAA), 2005.


serious human rights abuses such as torture or prolonged detention. USAID was restricted from providing support for prisons due to Section 660 of the Foreign Assistance Act (FAA). Section 534(b)(3)(D) of the FAA, adopted in 1985, authorizes the use of ESF for programs, conducted through multilateral or regional institutions, to improve penal institutions and the rehabilitation of offenders. This provision has been in the Act since 1985. Another exception to this prohibition was made in the FY 2008 Appropriations Act, allowing limited assistance to prisons and correctional institutions, including oversight and improving basic conditions.15 This provision was revised in the 2010, State, Foreign Operation Appropriations Act (PL 111-117) to focus assistance to the governments specifically trying to improve prison conditions.16

Legal approval must be obtained prior to initiating any activities in this area.

Non-Governmental ActorsSupporting organizations, institutions, and actors outside the government is often essential to addressing all elements of the rule of law. Supporting legal professional associations like bar associations can strengthen the quality and effectiveness of individuals within the justice system. These and other non-governmental organizations can also provide citizen oversight over the justice system and serve as a powerful voice promoting the rule of law and maintaining reform momentum. Bar associations, law schools, and NGOs as well as the media, schools, business associations, and other actors may also play critical roles in advocating for legal reform and providing legal services to poor or vulnerable populations to broaden access to justice and deepen public awareness and respect for the rule of law. USAID recently funded a successful civic legal education program involving Palestinian children in cooperation with the Ministry of Education aimed at raising awareness of civic education and rule of law issues through a creative writing exercise on justice day. Rule of law programs should consider how all actors might directly contribute to rule of law reform.

Non-State Justice InstitutionsThis term encompasses a wide array of traditional, customary, and religious non-state justice and informal mechanisms that provide dispute resolution and justice-related services, sometimes with ties to the state and governed by an established legal framework. Non-state justice systems are generally structured around community-based institutions which may provide easily accessible participatory, efficient, flexible, and culturally relevant justice. At the same time, these systems may be based on complex and informal procedures, lack transparency, and fail to uphold international human rights and equality standards, particularly with respect to women. Nonetheless, the prevalence of these institutions, their popular legitimacy, and their impact on the

15 Section 634 (p) PRISON CONDITIONS: Funds appropriated by this Act.may be used to provide assistance to improve conditions in prison facilities administered by foreign governments, including among other things, activities to improve prison sanitation and ensure the availability of adequate food, drinking water and medical care for prisoners: Provided, That assistance made available under this subsection may be made available notwithstanding section 660 of the Foreign Assistance Act of 1961, and subject to the regular notification procedures of the Committees on Appropriations.

16 UPDATED Provision on Prison Condition. Section 7085 requires the Secretary of State to submit a report on conditions in prisons and other detention facilities in countries receiving United States assistance where the Assistant Secretary of State for Democracy, Human Rights and Labor has determined that arbitrary detention and/or cruel, inhumane or degrading treatment, or inhumane conditions, is common, and identifying those countries whose governments are, and are not, making significant efforts to eliminate such conditions. The Act provides that funds shall be made available, notwithstanding section 660 of the FAA, for governments identified in the report that are making such significant efforts.


http:conditions.16http:conditions.15

Rebuilding the Judiciary in Kosovo In Kosovo, peacekeeping forces filled key law enforcement functions before the UN transitional authority brought in international police, judges, and lawyers to fill local needs. A judicial review committee was then established to vet local judges so that they could be trained and reintegrated into a local judiciary.

rule of law may make them worthwhile to engage. USAID is developing technical guidance on

engaging with non-state justice institutions.17

Special Issues in Post-conflict Environments. Post-conflict conditions present special challenges with respect to rebuilding justice sector institutions. These institutions may simply be destroyed as a result of violence or civil war. Even if they are not, they may have little or no capacity to assume basic functions for maintaining order and security. In other cases, justice sector institutions have little credibility because they were under the control of disbanded authoritarian regimes and can no longer be relied upon. The post-conflict rebuilding process is challenging and complex. It requires strategies that promote local ownership and financial sustainability, and that develop local capacity quickly. USAIDs Office of Democracy and Governance is developing guidance for several institution-building approaches in post-conflict environments that meet these criteria.

17 A useful overview of programming options for non-state justice institutions is Non-state Justice and Security Systems, United Kingdom Department for International Development Briefing PD Info 018, May 2004.


http:institutions.17

Assessment Steps 1. Take into account the political and historical context. 2. Understand the roles of major players and political will. 3. Examine program options beyond the

justice sector. 4. Assess the justice sector.

PART II. CONDUCTING A RULE OF LAW ASSESSMENT

Rule of law activities often emerge from the urgency to address an obvious problem, such as corruption, crime, or a poor investment climate. Too often, activities are defined without the benefit of a systematic assessment that looks at all elements, their context, and program options. In the absence of such an assessment, sometimes programs become ends unto themselves, without ensuring their impact on broader goals of promoting the rule of law and democratic governance. In addition, the process should be participatory with key stakeholders. This not only allows the assessment team to benefit from local justice experts and ensure the accuracy of assessment findings, but also helps to create buy-in by key justice officials for justice reform. Positive change in the justice system will not succeed unless the local justice officials are truly committed to the reform process.

Rule of law assessments are intended to support the design of strategic and holistic rule of law programs. Starting from a broad look at the political and historical context as it affects the rule of law, the assessment moves into an analysis of the major players who affect the rule of law, before conducting an in-depth examination of the justice system itself through the lens of the five essential elements. This framework should help the assessment focus on first identifying key problems as they affect essential elements of the rule of law and only then developing programming solutions to address these key problems, rather than using potential programming solutions as the starting point for program design. In addition, the assessment should lead to a holistic look at the major rule of law challenges, including how factors within and outside the justice sector affect the essential elements of the rule of law, what options are available for addressing those challenges within and outside the sector, and what the realistic possibilities are, given the major players and political will.

The following steps outline a process for conducting such a systematic rule of law assessment. This outline is not intended as a practical methodology for conducting an assessment, but as a framework for analyzing the rule of law and developing strategies to address the key challenges. Information gathered in the assessment should be analyzed according to the steps laid out below. Practical strategies for gathering data may include reviewing laws, regulations, and other key documents, conducting qualitative interviews with key actors, reviewing statistical data from court operations and other institutions, and conducting or drawing from survey research about public perception and attitudes. Specific questions and methods should be determined based on the local context, objectives, and unique challenges of each assessment. Sample questions and a sample scope of work are included in the Appendix.

STEP 1. TAKE INTO ACCOUNT THE POLITICAL AND HISTORICAL CONTEXT

The political and historical context includes both past and current events. Often, recent changes frame the problem and prompt the establishment of a democracy-focused rule of law program. For example, in Eastern Europe and the countries of the former Soviet Union, the primary goal was to overcome the vestiges of the communist political system. In terms of the rule of law, the power of the executive needed to be checked. The judiciary and the legislature needed to establish their independence from executive control, in form and practice, and begin to contain executive domination, including the power of the prosecutors. In contrast, the inability of the judiciary or executive to check human rights abuses by the military in Latin America defined a compelling problem, within the longer-term historical context of authoritarian control. As wars ended and human rights abuses declined, high levels of crime and violence followed, requiring a broader approach to the rule of law. In addition, post-conflict contexts


are unique and influence the range of rule of law options. In these contexts, security, provisional measures, and transitional justice to address past wrongdoings are high priorities.

Step 1 rarely requires starting from scratch. In most cases, the state of the state will be captured in a variety of assessments, including DG assessments. These should analyze the political situation, and help identify whether a regime is a democracy, an authoritarian regime, or a state transitioning from conflict. If it is a democracy, the assessment will note whether it is weak, consolidating, or regressing into authoritarianism. Where there is no DG assessment, country strategic plans, operational plans, country human rights reports, and Supporting Human Rights and Democracy reports provide an initial orientation. U.S. Embassy political officers can also help with relevant analysis.

One critical but often overlooked contextual factor is the tradition on which a countrys legal system was founded. That tradition affects the basic structural arrangements and functions of the judiciary and related institutions. For example, judiciaries in some civil law systems are, or may recently have been, part of the executive branch and dependent upon the ministry of justice. The prosecutor may have a very dominant or very weak role compared with that of the judge.18 Although structural arrangements have changed over the years in most civil law countries to enhance judicial independence, they often still differ in fundamental respects from those found in common law countries. In most cases, countries considering structural reforms will look to other countries with a similar legal tradition for models.

When reforms of laws are contemplated, it is important to know why the old provisions were adopted in the first place. What the original provisions reveal about the structure of a country and its values will influence the prospects for achieving reforms. As with structural reforms, changes in laws modeled on provisions from countries with a similar tradition are often more likely to succeed.

STEP 2. UNDERSTAND THE ROLES OF MAJOR PLAYERS AND POLITICAL WILL

This step develops information on the roles, resources, and interests of leaders and others whose support is necessary for rule of law reforms. Those working within justice sector institutionsthe rank and file as well as the leadershipwill always be important actors. They can either support a reform program or sabotage it. It is therefore critical to gain the support of at least some actors working in the system at all levels. In most cases, this is feasible. Concerns that inside actors have about reforms should be heard and addressed from the outset or they will likely turn into obstacles.

The most crucial and revealing question can be who benefits from weaknesses in the rule of law. Such beneficiaries typically are political, military, social and economic elites who protect their interests and status by undermining effective rule of law in the country. Understanding their interests can be essential to identifying opposition to reform and working to overcome resistance to change. There are usually some members of the establishment who understand that reform is in their long-term best interests. Such allies can be valuable counterweights to powerful stakeholders who seek to thwart progress.

The assessment should also focus on identifying non-governmental champions. Leadership within civil society and the media can be pivotal to success. Leaders of NGOs and the media can monitor government and the judiciary and push for follow-through on public commitments, thereby sustaining rule of law reforms over time.

18 The Latin American civil law tradition features a strong investigative judge and a weak prosecutor; by contrast, under communist legal systems, the procuracy (institutions that combine police and prosecutor functions) completely dominated procedures. Reforms in both regions have sought to bring about greater balance in both roles while respecting other aspects of the civil law tradition.


http:judge.18

The support for rule of law reforms is often characterized by the term political will. Everyone agrees that political will is an important ingredient for the success of reform programs. However, applying the concept to program decisions requires some caution. USAIDs earlier piece on rule of law programming, Weighing in on the Scales of Justice (February 1994), broke new ground in proposing a strategic approach to rule of law programming. Some interpreted it as making political will a precondition for working on the rule of law. This interpretation leads to a logical sequencing of assistance. The first step would be to build sufficient political will. Reformers would next launch programs in institutional strengthening, training, expanding access, and related areas.

However, political will is complex and nuanced. A superficial analysis, one based upon the actions or inactions of a few officials, for example, will not tell the whole story. The assessment must be sufficiently broad to develop a more accurate picture. Also, there is no fixed standard for how much political will is sufficient to launch a program. Moreover, governments and elites usually have a range of conflicting interests and views on rule of law reform. In many countries, elites and members of the judiciary and related institutions may have little concept of what rule of law reform entails. Their initial, uninformed expressions of support can quickly fade when they understand how reforms will affect their interests. Conversely, support may grow when the reforms become concrete enough to be meaningful.

While important to analyze, political will should not be a precondition for rule of law programming. In fact, rule of law programs themselves can cultivate political will. For example, in some Latin American countries, activities such as judicial training or providing modest amounts of supplies have generated political will and buy-in. Also, program activities themselves can educate and catalyze

guide to rule of law country analysis: the rule of law strategic

Documents